Europe's 'Right to Be Forgotten' Is All Wrong

Erasing one’s history from the Internet — it’s every campaign manager’s dream and every opposition researcher’s nightmare. Today, everyone leaves a digital footprint, from photos of ill-advised hairstyles, to bankruptcies and emotional outbursts. Some of that history is relevant to political discourse; some of it is not only irrelevant, but also harmful. But how do we determine what’s public knowledge and what’s private history?

The European Court of Justice issued a ruling this spring that shows one way not to weigh that balance. There, the court decided that an individual has the right to request that an Internet search engine take down links to information about them when the links “appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed.” The court said that people could petition companies directly to have links taken down.

The European Court issued its pronouncement, but set no process or guidelines for how those petitions would work, nor what standard should be used to judge them. Without implementing guidance or an intermediary government body, companies were left to interpret the court’s ruling. Google, against whom the initial case was brought, published an online form that individuals could use to request that links be taken down. Microsoft has followed suit. The process for removing links now takes place between the individual and the company. There is no requirement of a public record of the request. There is no weighing of relevance of the public’s right to know. And there is no forum to appeal the decision.

As a result, the court’s ruling can be used to whitewash unpleasant pasts. In one example, the links to a BBC column about the role of the head of a major financial institution during the financial crisis were taken down. Our European cousins may value the right to be forgotten on the Internet more highly than the public’s right to know. The European Court of Justice has certainly embarked upon a slippery slope.

In this country, we should avoid their example. The courts are not the right place to make policy that requires a complex balancing of individual and public rights. The facts presented in one particular case are insufficient to guide a company in deciding all the ways in which the public’s right to know should be preserved. And making the decision behind closed doors does not allow the public to challenge the rationale, pose examples or present alternate hypotheses.

In American democracy, we value transparency and openness. We might wish to control what is said about ourselves by whitewashing mistakes. But as Harry Truman once said, “Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”

Let’s ensure that a right to privacy can’t be perverted into a tool for ignorance and oppression.

This piece was originally published via U.S. News & World Report.